FERS Disability Law: The MSPB and Consistency of Argumentation

Is it even important, anymore?  Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.

It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there!  Are you trying to argue X and Not-X at the same time?”  The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”

In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so.  OPM denies cases systematically without any regard to consistency of argumentation.  This is because there is no accountability at the U.S. Office of Personnel Management.  They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.

Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.

Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor.  For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.

Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case.  The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

OPM Disability Retirement: OPM’s Specific Denial I

On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial.  The reason for such a targeted approach is for two primary reasons:  (1)  One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”.  In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter:  OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness.  It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it?  What else can we do?  It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: More on the MSPB Stage

While I believe that an attorney versed in the Federal Disability Retirement process can be helpful at all stages of the process, at the Third Stage — the Merit Systems Protection Board stage — the input, assistance, and representation of an experienced attorney can be invaluable.  This is essentially the “last” stage of the three-stage process.  Of course, there are two additional stages, but both concern an appeal — in the event that the Administrative Judge rules against the disability retirement applicant at the MSPB.

During the process at the MSPB, the Appellant will have what is called a “Prehearing Conference”.  At such a conference (held over the telephone), the Judge will go over with both parties (the applicant and the OPM representative), certain basic essentials about the law, to include the standard of proof, witness list, preliminary legal matters, etc.  What is important at such a Prehearing Conference is to carefully listen to the Judge.  As each Judge is human, and thus different, it is important to listen and carefully be attentive to what the Judge is looking for.  If more medical documentation is needed, exactly what is the Judge looking for?  If there is a concern about a certain legal issue — say, the issue of accommodation — what exactly is the Judge concerned about?  By being attentive to the questions of the Judge, and fashioning the Hearing to address those concerns, the applicant greatly enhances his or her chances of winning at this crucial stage of the process.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Merit Systems Protection Board

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement Cases Before an MSPB Judge

When putting on a disability retirement case under FERS or CSRS before the Merit Systems Protection Board, it is essential that an applicant (if unrepresented) and the attorney (if represented, the applicant need not participate in any Prehearing Conference, but will obviously encounter the Judge during the Telephone Hearing) listens to the Administrative Judge during any Pre-Hearing Conference.

Most Administrative Judges are actually willing to help the appellant. While judges are unable to render legal advice or to actually lend counsel to the appellant, many administrative judges go out of their way to clearly outline for the Appellant the tools needed to persuade and win the case. Administrative Judges, for the most part, actually want to root for the appellant, and want you to put on a good case to persuade them to rule in your favor. In my opinion, an appellant should have an attorney at the Merit Systems Protection Board. At a Prehearing Conference, I listen carefully at any special concerns or comments which an Administrative Judge may make — because such concerns are often the key to winning the case for my client. Remember — judges are human; they want to root for the underdog; they want you to win your case.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: A Different Animal

When an individual has attempted to obtain disability retirement under FERS or CSRS on his/her own, but has failed at both the initial stage as well as the Reconsideration Stage, while it is true that a Hearing before an Administrative Judge at the MSPB is to be heard de novo (meaning, heard “anew” and where new evidence may be submitted), it is always important to try and introduce something new above and beyond medical reports and records. This is why I normally insist upon having at least one doctor testify over the telephone. That way, everything can be presented and exposed: the Judge is able to hear first-hand the medical assessment and opinion of the treating doctor, and allow the doctor to be subjected to as much cross-examination as OPM’s representative wants.

This latter aspect is important for the administrative judge to see — that we (the applicant and the attorney) have nothing to hide; the opinion of the doctor is unequivocal and informed, and none of OPM’s questions can shake that opinion. This takes careful preparation and a systematic, thoughtful series of questions and answers between the attorney and the doctor, to meet each of the legal criteria demanded for approval of a disability retirement claim.

Sincerely,

Robert R. McGill, Esquire